Foreign Nurses Charged For Walking Off Job - page 11

Smithtown nurses charged with endangering kids after walk-out Ten nurses who abruptly resigned from their jobs last year at a Smithtown nursing center were charged Thursday -- along with an... Read More

  1. by   Gromit
    Dunno. Don't you have to file where the company is based? I never understood this sort of thing -and since I try to avoid lawyers like the plague, I probably never really will understand it.
  2. by   Sheri257
    Obviously I don't know for sure but, people file in different court jurisdictions for different reasons. Since Sentosa was a company that ran a chain of nursing homes, the parent company location may have been different than where Avalon Gardens was located ... hence the different jurisidiction.

    As for the court case taking more than a year, that would not be unusual at all. In the U.S., court cases can take years.

    :typing
    Last edit by Sheri257 on Apr 1, '07
  3. by   Sheri257
    Quote from ZASHAGALKA
    And, any nurse can quit without notice after any given shift is completed.
    I'd personally would want to check with my BON before I made that assumption. In our nursing program, we went over legal issues before graduation, and while our instructor didn't address the issue of quitting without notice, I did learn that this sort of thing can be tricky.

    Just as an example: our instructors did tell us that if somebody doesn't show up to relieve you after the shift is over, our BON does expect you to stay another four hours. But, at that point, you also should declare yourself unsafe due to fatigue, give them "reasonable" notice that you are no longer going to be safe after that four hours ...

    And, if they don't find a replacement after four hours "reasonable notice" then you can leave without being charged with patient abandonment by the board.

    I'm not saying this applies to the case here but, I think it does illustrate that different BON's can have different rules, etc. for these situations. It's probably wise to check with the BON to make sure before you do anything of this sort.

    :typing
    Last edit by Sheri257 on Apr 1, '07
  4. by   pinoy_guy
    nassau county supreme court decisions on the running battle.

    plaintiff is the sentosa group of companies.

    defendants are the nurses, the physical therapist, and vinluan.


    http://decisions.courts.state.ny.us/.../006079-06.pdf
    july 5, 2006

    accordingly, because plaintiffs have failed to make the requisite evidentiary showing entitlng them to the remedy of a preliminar injunction, the request for such relief is denied. (sterline fifth associates v carpentile corp., inc., 5 ad3d 328, 329, 774 nys2d 140, 1 st dept., 2004). the fact that the philippine overseas employment administration lifted an order of preventive suspension which had suspended the license of sentosa recruitment agency does not inure to plaintiffs' benefit. the order specifically recognizes the fact that, as us immigrant visa holders, the defendant nurses rights are amply protected by the host governent from whom redress can be secured.

    http://decisions.courts.state.ny.us/.../006079-06.pdf
    november 21, 2006

    accordingly, the plaintiffs ' motion to dismiss the vinluan counterclaim is granted.

    turning now to the defendant nurses ' individual counterclaims for fraud...the plaintiffs ' motion is granted.

    http://decisions.courts.state.ny.us/.../006079-06.pdf
    december 12, 2006

    respective motions, by defendants juno healthcare staffing systems, inc. and cecile jaoy (cplr 3212) and by defendant felix q. vinlaun (cplr 3211(a)(7), to dismiss the complaint as to said defendants are granted as to defendants juno healthcare staffing systems , inc. and cecile jaoy and denied as to defendant felix q. vinlaun for the reasons set forth below.
    . . .
    ...undoubtedly there is a difference between merely advising a client on the legal aspects of an employment agreement and becoming directly involved in inducing a group of nurses to breach their contracts with plaintiff. whether plaintiffs are able to prevail on their tortious interference cause of action against defendant vinlaun is an open question. at this juncture, however, the cause of action is sufficiently pleaded to withstand defendant vinlaun s cplr 3211 (a)(7) motion.


    the respective motions by defendant juno healthcare staffing systems, inc. and cecile jayo for summary judgment dismissing the complaint as to said defendants are granted there being no opposition thereto submitted by plaintiffs and no legal basis to sustain the claims asserted against them.

    http://decisions.courts.state.ny.us/...006079-06a.pdf
    december 19, 2006

    the motions, by defendants juno healthcare staffing systems, inc. and cecile jayo, are hereby withdrawn.

    the motion, by defendant felix q. vinlaun (cplr 3211(a)(7), to dismiss the complaint is denied for the reasons set forth below.
    . . .
    it is well settled that an agent cannot be held liable for inducing his principal to breach a contract with a third person, at least where he is acting on behalf of his principal and within the scope of his authority. (hussie v bressler, 122 ad2d 113, 114, 2 d dept., 1986). the mere fact, however, that one is an attorney acting in a professional capacity does not make him/her absolutely immune from responsibilty for wrongful acts. an attorney may be personally liable to a third person who sustains an injury as a consequence of an attorney s wrongful act or improper exercise of authority where the attorney is guilty of fraud or collusion or of a malicious or tortious act. (hahn v wylie 54 ad2d 629, t dept., 1976).

    . . .

    undoubtedly there is a difference between merely advising a client on the legal aspects of an employment agreement and becoming directly involved in inducing a group of nurses to breach their contracts with plaintiff. whether plaintiffs are able to prevail on their tortious interference cause of action against defendant vinlaun is an open question. at this juncture, however, the cause of action is sufficiently pleaded to withstand defendant vinlaun's cplr 3211(a)(7) motion.

    the respective motions by defendant juno healthcare staffing systems, inc. and cecile jayo for summary judgment dismissing the complaint as to said defendants are withdrawn by reason of the discontinuance of the action against the defendant juno and the withdrawal of the motion by the defendant jayo for the purposes of making a motion for the same relief on behalf of several of the nurse defendants, including this defendant jayo.

    http://decisions.courts.state.ny.us/.../006079-06.pdf
    january 5, 2007

    this motion, by plaintiffs, for an order pursuant to cplr 2221 to reargue their prior motion for a preliminary injunction, is granted and upon reargument the court adheres to its decision dated july 5, 2006.

    pursuant to the order of this court dated july 5, 2006, plaintiffs ' motion for a preliminary injunction enjoining the defendants from soliciting or advising any employees under contract with plaintiffs to termnate their employment before the end of their contract terms and from entering the premises at which plaintiffs operate was denied.

    this action arises from the purportedly abrupt resignation of 25 nurses, and one physical therapist, from their positions at various skilled nursing facilities owned and operated by plaintiffs as a result of which the health, safety and welfare of many elderly, infirm non-ambulatory patients (including children in the pediatric vent unit) were purportedly put at serious risk.

    . . .

    plaintiffs ' motion to reargue is predicated on the grounds that this court misunderstood or overlooked plaintiffs' contention that they are likely to prevail on their breach of contract claim inasmuch as each of the contracts between the defendant nurses and plaintiffs expressly provide that:

    (tjhe employee agrees to be employed by the employer under the terms of this contract for three full years from
    his/her first date of employment.
    since the defendant nurses never disputed this fact, and given that each had promised not to

    engage in the practice of nursing, or in any other occupation for any other company, facility, hospital, entity or private individual during the term of their employment with plaintiffs,"
    plaintiffs maintain they are entitled to sue the defendant nurses for breach of contract and are likely to prevail on that claim. with respect to the tortious interference claim asserted against defendant felix q. vinluan, plaintiffs allege that 1) in persuading the defendant nurses to leave plaintiffs ' employ; 2) having them quit without giving notice; and 3) in coordinating the timing of twenty-six resignations, defendant vinluan s conduct exceeded the passive role of attorney/advisor resulting in considerable disruption to plaintiffs and the patients in their care.

    . . .

    in the absence of any showing that the defendants have entered plaintiffs premises and/or entreated additional personnel under contract with plaintiffs to terminate their employment before the end of their contract terms, injunctive relief does not lie and plaintiffs ' application must be denied.

    http://decisions.courts.state.ny.us/.../006079-06.pdf
    february 28, 2007

    this motion, by defendant nurses (with the exception of arlyn torrena) and the sole physical therapist (dondon parungao) (collectively the nurses), to dismiss the breach of contract claim asserted against said defendants pursuant to cplr 3211(a)(7) and for summary judgment against plaintiffs on movants' counterclaim for actual , compensatory and punitive damages is denied.

    . . .

    further, the fact that plaintiffs fail to attached copies of the agreement upon which the action is based to the complaint is not a fatal defect requiring dismissal of the complaint and that part of defendants ' motion to dismiss is denied.

    the news articles are not giving a clear picture of the case.
    Last edit by pinoy_guy on Apr 1, '07
  5. by   Sheri257
    Good stuff Pinoy Guy:

    This looks like the most important decision.

    http://decisions.courts.state.ny.us/.../006079-06.pdf

    It looks like the court refused to dismiss Sentosa's breach of contract lawsuit against the nurses.

    I guess the nurses were trying to claim they were agency nurses who could resign at any time without the $25K contract penalty but the court, at least for now, isn't buying that argument.

    The nurses are claiming that they were merely working as agency nurses for the Prompt Nursing Employment Agency, which was Sentosa's recruiting company, but the court disagreed:

    "Each of the nurses admits he or she entered into a written employment contract with one of the (Sentosa facilities). Moreover, these agreements have been submitted as exhibits in support of the dismissal motion."

    "Their letters of resignation were addressed to the Sentosa Facility which employed them. Given these facts, it is contradictory for the defendant nurses to argue that they were employed by Prompt, rather than by one of the Sentosa facilities."


    :typing
    Last edit by Sheri257 on Apr 1, '07
  6. by   ZASHAGALKA
    Quote from lizz
    I'd personally would want to check with my BON before I made that assumption. In our nursing program, we went over legal issues before graduation, and while our instructor didn't address the issue of quitting without notice, I did learn that this sort of thing can be tricky.

    Just as an example: our instructors did tell us that if somebody doesn't show up to relieve you after the shift is over, our BON does expect you to stay another four hours. But, at that point, you also should declare yourself unsafe due to fatigue, give them "reasonable" notice that you are no longer going to be safe after that four hours ...

    And, if they don't find a replacement after four hours "reasonable notice" then you can leave without being charged with patient abandonment by the board.

    I'm not saying this applies to the case here but, I think it does illustrate that different BON's can have different rules, etc. for these situations. It's probably wise to check with the BON to make sure before you do anything of this sort.

    :typing
    I was presuming after having been properly relieved. Thanks for clearing up any confusion.

    ~faith,
    Timothy.
  7. by   pinoy_guy
    Quote from lizz
    it looks like the court refused to dismiss sentosa's breach of contract lawsuit against the nurses.

    i guess the nurses were trying to claim they were agency nurses who could resign at any time without the $25k contract penalty but the court, at least for now, isn't buying that argument.

    the nurses are claiming that they were merely working as agency nurses for the prompt nursing employment agency, which was sentosa's recruiting company, but the court disagreed:
    interesting, huh?

    amazing how a little google flushes out the facts.



    another backgrounder on the case:

    http://www.nysna.com/departments/com...g/bad_days.htm

    report: july/august 2006
    for these nurses, the bad old days are back



    "we need help."

    that was the subject line on an e-mail sent to nysna in april by a group of registered nurses from the philippines. the 27 rns, all of whom had come to the u.s. through the sentosa recruitment agency, had walked away from intolerable job situations.

    "we arrived in new york on nov. 11, 2005," wrote ritchel salve. "we were brought to an apartment where there were 12 of us staying in three rooms with one bathroom. we were each given a bed, some groceries, and $50, which we had to budget until we could start working."

    it was just the beginning of their problems with sentosa. later, salve claimed, some of the rns did not get the promised two months of free housing and others were not reimbursed, as promised, for fees associated with taking the exams and obtaining their new york nursing licenses.

    on nov. 23, salve and other nurses were given a one-day orientation at brookhaven rehabilitation and healthcare center in queens. the next day, they were sent out on the floors.

    "as we were the least senior, we were the ones floated to the different floors although we were not oriented there," salve wrote. "the posted schedule wasn't really followed. there would be two nurses listed, but in reality only one would be there because the other one was floated to another area. the quality of care given to the residents was being compromised."

    in addition to working long hours, said salve, the filipino rns were not paid their promised salaries and benefits. after nearly five months, they had reached the limit of their endurance. on april 6 they filed a complaint with the u.s. department of justice. during the following three days, the nurses resigned from their various facilities.

    within a week, however, salve learned her former employer was suing the nurses for breach of contract and charging them with professional misconduct. their rn licenses were put on hold by the state, preventing them from applying for work elsewhere.

    . . .

    in early june, salve reported that she had passed the nclex exam. then on july 2, word came that the nurses' licenses had been released.

    later that week, the state labor department wrote to gerardi, noting "a review of the information you provided indicates that there are possible violations of both state and federal wage payment statutes." a coordinated state and federal investigation is expected to be underway soon.
    i'm curious about the timeline.

    how could the nurses be overworked 5 months before april (when "they had reached the limit of their endurance"), when "in early june, salve reported that she had passed the nclex exam. then on july 2, word came that the nurses' licenses had been released."?

    what happened to the "expected coordinated state and federal investigation?"

    curious that the testimonies aired in philippine news media, the victims "now live "in leaking abandoned house(s)," located possibly in dark alleys of the city, which they had to furnish by "scrounging around for utensils, chairs and other things thrown away" by other people."

    will we ever learn the full story?


    another food for thought:

    http://pinoy.md/ipb/lofiversion/index.php/t1891.html


    Quote from moneywhiz
    sep 20 2006, 02:34 pm
    i have met several of the involved 3 weeks ago here in ny.......all of them are now earning at least $32 per hour in mostly big private hospitals in new york city.....
  8. by   pinoy_guy
    something that sounds like a press release from sentosa.

    http://globalnation.inquirer.net/new...ticle_id=57336

    recruiter to continue hiring nurses despite us row
    03/27/2007


    the us-based sentosacare will continue to recruit nurses from the philippines, despite the company's ongoing legal battle with filipino nurses who allegedly left their jobs in health care facilities in new york city.

    . . .

    in spite of what happened, philipson said sentosacare would continue to focus on recruiting nurses only from the philippines. the company also refused to be affected by the recent controversy on the leakage in the nursing licensure exam.

    philipson said it was up to philippine officials to resolve any issue and sentosacare would abide by their decision.

    francis luyun, sra chief executive officer, said the agency was not suffering from any backlash from the controversy stirred by the 28 filipino nurses.

    there is no dearth of applicants, luyun said.

    there are 450 nurses in the philippines awaiting deployment to the united states. they are just waiting for their visa, he added.
    Last edit by pinoy_guy on Apr 1, '07
  9. by   pinoy_guy
    an old article on the issue. sounds like the story from the sentosa side.

    http://www.manilastandardtoday.com/?...ay_sept28_2006

    recruiter strikes back
    september 28, 2006


    on the nurses' allegation that they were underpaid, sentosa explained that the newly recruited nurses are first given clerical jobs and/or office work to familiarize them with their functions. they were given allowances commensurate with their workload but not as nurses since it is illegal to give them nursing jobs without the required permit from the state of new york.

    but once they receive their work permits, they are to be paid as nurses in accordance with the contract, at rates ranging from $22 to $35 per hour and with overtime pay of up to $40 per hour.

    sra traced the problem to the alleged impatience of elmer jacinto and his group to get higher compensation "without first proving their worth." it also accused them of turning their back on their contracts in their desire to transfer to other medical institutions.

    according to sra, jacinto, shortly after arriving in new york in november 2005, approached top officials of the recruitment firm, bent philipson and francis luyun (chief executive officer and proprietor) on whether he can buy out his contract and leave sentosa to work for a us hospital. but the request was denied since sentosa did not want to appear that it was bringing in nurses for other purposes and not to work in a sentosa facility. jacinto subsequently requested to be transferred to another nursing facility near a school so he can pursue further studies as a physician, and this time it was granted.

    sra charged that the filipino nurses initiated the complaint against the recruitment firm to get back at them after they sought disciplinary action against them for walking out of sentosa facilities in new york last april "without valid reasons." the company sued them for breach of contract and violation of new york labor laws.

    they are also facing investigation by the new york state education department for alleged professional misconduct for abandoning their elderly and pediatric patients without proper notice.

    sra also linked the juno healthcare staffing pattern system inc. to the mess. it said juno healthcare used to supply nurses to sentosa until the latter decided to directly recruit in the philippines to raise pay scales. sentosa hinted that juno, through its lawyer vinluan, instigated the april walkout of filipino medical workers as shown in its complaint filed with the supreme court in new york.

    on why it ran to senator schumer for help, sentosa explained that it only did so after the philippine consular officials in new york allegedly refused to hear the side of the medical care provider in the complaints of the filipino medical workers.
  10. by   eltrip
    I didn't see the link for the article by page 8 of the discussion, so I went looking for it...here it is: http://www.newsday.com/news/local/lo...y-theater-mezz
  11. by   pinoy_guy
    http://www.gmanews.tv/story/37242/fi...f-pinay-nurses

    fil-am lawyer wants individual counsels for ny trial of pinay nurses


    the filipino-american lawyer defending the 10 filipino nurses on trial in new york for conspiracy and child abandonment wants the philippine government to provide his clients with individual lawyers.

    . . .

    the nurses claimed that had they been directly employed, they would have been directly-hired employees of their respective petitioning employers and would have received the salary rates and benefits being received by regular employees of their petitioning employers.
    why would they want individual lawyers?

    isn't it weird that after they filed a class suit against the agency, they want individual lawyers?

    somebody have any input?
  12. by   Sheri257
    Quote from pinoy_guy
    http://www.gmanews.tv/story/37242/fi...f-pinay-nurses

    fil-am lawyer wants individual counsels for ny trial of pinay nurses




    why would they want individual lawyers?

    isn't it weird that after they filed a class suit against the agency, they want individual lawyers?

    somebody have any input?
    if i recall correctly, one of the articles said this lawyer is representing the nurses pro bono so ... maybe he doesn't want to represent these nurses without getting paid.

    i always thought it was weird that they expected the filipino government to intervene on their behalf anyway. most of what they've complained about seemed to involve u.s. law so, from a technical, legal standpoint i'm not sure why they would expect the filipino government to do anything that, on the face of it, appears to be out of their jurisdiction.

    in the u.s. at least, you usually have to pay for your own lawyer, unless you can convince an agency like the eeoc to prosecute certain matters like the discrimination claim.

    and the article is totally ignoring the u.s. court ruling that there was no evidence that they were just "agency" nurses. the court said the evidence submitted by the nurses themselves actually showed they were directly employed by sentosa.

    the nurses are trying to have if both ways: for the walkout and breach of contract issue they're trying to claim they were just agency nurses. but, at the same time, they're arguing they deserved overtime, night differentials and more hours as full time staff employees of the company.

    that's why the u.s. court hasn't ruled in their favor on those issues, at least for now. it does look like the filipino press is kind of biased here because they're not taking the recent court decisions into account at all.

    whatever the case may be, the nurses probably should get new lawyers because these lawyers certainly haven't done well on their behalf. so far: these lawyers have gotten them indicted and, also, lost the preliminary court rulings on the breach of contract issue as well.

    :typing
    Last edit by Sheri257 on Apr 6, '07
  13. by   pinoy_guy
    thanks for your input, lizz.

    we have a different way of doing things, the reason i asked for another perspective.


    class suits are rare, if we ever had them, in the philippines.


    it is interesting to note that the nurses banded together and filed a class suit (to pool their resources?).

    turning around on the defense, demanding for individual counsels, is a technique to draw out the case. (is this common in the us?).

    a case in point is the impeachment case of our former president. he had a whole phalanx of lawyers, each of which would bring up some legal obstacle or reason to postpone the hearing.


    Quote from lizz
    if i recall correctly, one of the articles said this lawyer is representing the nurses pro bono so ... maybe he doesn't want to represent these nurses without getting paid.
    ah.

    pro bono.

    does this imply something about the lawyer?

    i've watched a couple of movies where newly minted lawyers would take on such cases to make a name for themselves. the movie lawyers wanted media exposure so they will become famous.

    does this happen in the real world?


    Quote from lizz
    i always thought it was weird that they expected the filipino government to intervene on their behalf anyway. most of what they've complained about seemed to involve u.s. law so, from a technical, legal standpoint i'm not sure why they would expect the filipino government to do anything that, on the face of it, appears to be out of their jurisdiction.
    there is a cultural thing with us filipinos.

    we don't want foreigners meddling with how we dealt with our board exam leakage issue...yet we want these same foreigners to recognize the licenses of the "rns" caught in the leakage fiasco, and give them jobs in the us.

    how's that for having it both ways?

    it was ingenious of cgfns to come out with that stand, that the licenses of the rns in that exam are legal and valid in the philippines, but not good enough for the us.


    Quote from lizz
    in the u.s. at least, you usually have to pay for your own lawyer, unless you can convince an agency like the eeoc to prosecute certain matters like the discrimination claim.
    how do these agencies deal with nuisance cases?


    Quote from lizz
    and the article is totally ignoring the u.s. court ruling that there was no evidence that they were just "agency" nurses. the court said the evidence submitted by the nurses themselves actually showed they were directly employed by sentosa.
    yes, i saw that.

    interesting to read a lot of highly opinionated statements from people who obviously hadn't read that part of the case.


    Quote from lizz
    the nurses are trying to have if both ways: for the walkout and breach of contract issue they're trying to claim they were just agency nurses. but, at the same time, they're arguing they deserved overtime, night differentials and more hours as full time staff employees of the company.
    my reading of the situation too.

    there is a part 2 to the case, a part most americans cannot seem to understand.

    these nurses wanted to have their green cards, no strings attached.

    this is the part most people don't know about.



    most filipinos are poor. nursing is our way out to a better life.

    sentosa may not be an angel, but it is a way out for a lot of filipinos.

    thousands of filipinos.

    then comes a group of nurses that wanted out of the contract when they got their green cards. they didn't want to work for sentosa coz they can get higher pay with other agencies/hospitals.

    of course they can.

    these other agencies/hospitals did not petition them for green cards. they did not "invest" in them.



    this is the crux of the matter: sentosa offered these nurses the green card in exchange for 3 years of work under their terms. the pay rate is controversial--the nurses said it was low, while sentosa said they paid competitive wages as compared to rns in the area.


    it is well known in the philippines that contracts negotiated by these agencies are reviewed by the us embassy in manila, before the nurses even leave the country.

    if the rate is grossly low, they do not leave. period. end of journey.



    now when the nurses get to the us, they already have their green cards, but some of them did not have us rn licenses yet. from my research, sentosa hired them as clerks, with the commensurate pay rates. clerks being answering phones or some other paperwork.

    (the claim about being forced to clean toilets--as some filipinos claimed in the philippines--was not seen in the legal documents. at least not publicly.)


    being "forced" to work as clerks? just go to manila and ask. it is a good deal: while the nurses haven't passed the nclex, at least they can earn some spending money.

    there are literally thousands of nurses in the philippines who would gladly take the place of the 11 nurses.


    i've met some rns who would take lower paying jobs just so they can have extra money. they may work as cnas, or monitor techs.

    while these rns work as cnas, do they have the right to demand for rn rates?

    this seems to be what the indicted nurses wanted.


    another question is that there were 27 nurses and 1 physical therapist originally involved in the case. 1 of the nurses came back to the philippines.

    what happened to the other 15 nurses?


    it's like a puzzle where they don't give us all the pieces.


    Quote from lizz
    that's why the u.s. court hasn't ruled in their favor on those issues, at least for now. it does look like the filipino press is kind of biased here because they're not taking the recent court decisions into account at all.
    the philippine press is very biased in dealing with this issue.

    they are claiming that we filipinos had been victimized yet again, that the nurses had been forced to live in rat-infested warehouses with leaking roofs and no heating...in winter. this is hard to believe as we're talking about a house in new york. and if the nurses had been housed in such a warehouse, wouldn't it be splashed on the news media already?


    Quote from lizz
    whatever the case may be, the nurses probably should get new lawyers because these lawyers certainly haven't done well on their behalf. so far: these lawyers have gotten them indicted and, also, lost the preliminary court rulings on the breach of contract issue as well.
    i think it takes two to tango.

    maybe the case hadn't done well because they didn't have a leg to stand on?


    whatever happened to the nysna investigation? the "expected" federal and state investigation?

    if they had a resolution favorable to the nurses, i would expect it to be all over the philippine news media.

    oddly, there is still silence.


    (a long post, but i show a different perspective to the situation which most people do not seem to get.

    there is a lot riding on this issue, not just the 11 nurses.

    the future of 450 nurses currently being petitioned by the affected agency can disappear in an instant. there were some instances similar to this with other agencies, where the nurses were waiting for years for their green cards only to be told that the petitioning agency had dropped its petition.

    a waste of time and money.

    this case could also affect the futures of the nurses being petitioned by other agencies in the philippines.

    why even bother when the nurses can walk when they get to the us?)

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